1.1 About Whacking Fatties. Thank you for choosing Whacking Fatties (the “Service” or “Services”). Whacking Fatties provides features enabling users to select optimal locations for fly fishing activities based on a variety of criteria. Please visit the Whacking Fatties website here. These criteria (the “Content”) include (but are not limited to) weather, water levels, insect hatch forecast information, land parcel ownership boundaries, detailed stream and lake maps, streamflow conditions, and weather forecasts. Whacking Fatties is intended to be a resource for fly-fishing location selection. Whacking Fatties was developed and trademarked by GCS in Missoula, MT. Please visit our main website.
2.0 Term and Termination.
2.1 Terms of Service. This Service Subscription Agreement (the “Agreement”) is a binding, contractual agreement between the legal entity (“Licensee” or “User”) and GCS Holdings, Inc. referred to as “Licensor” or “GCS”), and it governs Licensee’s and its agents’ use of Whacking Fatties (the “Service”). The Agreement includes terms regarding future changes to the Agreements, export controls, automatic renewals, limitations of liability, privacy, waiver of class actions, and resolution of disputes by arbitration instead of in court. If you wish to review the terms of the Agreements, the current effective version of the Agreements can be found on the Whacking Fatties website. This Agreement also governs all use of the Service by any Licensee during any trial, evaluation, or other unpaid term of use (collectively, a “Trial”). Licensee’s use of the Service is subject to Licensee’s acceptance of the terms and conditions of this Agreement. By entering into this Agreement and/or installing or using any Service, Licensee agrees to be bound by the terms and conditions set forth herein. In order to use Whacking Fatties and access any Content, the Licensee must have the power to enter a binding contract with GCS and not be barred from doing so under any applicable laws. The Licensee also promises that any registration information submitted to the Service is true, accurate, and complete. Licensee agrees to keep this information up to date, true, accurate, and complete at all times.
2.1 Ownership. The Service and its software components, and anything developed by Licensor for Licensee under this Agreement (“Contract Property”), are licensed (not sold). Licensor and its suppliers retain all copyright, trade secret, trademark, patent and other proprietary rights in the Service and the Contract Property, including but not limited to, all software, technology, information, content, materials, guidelines, and documentation. This license confers no title to, or ownership in, the Service or any of its components or any Contract Property, and Licensor reserves all rights not expressly granted to Licensee.
3.0 Fees; Payment.
3.1 Initial Term; Renewal. The initial term of this Agreement shall commence on the date that Licensee signs up for a Whacking Fatties subscription. Thereafter, this Agreement shall be automatically renewed from year to year on the January 1st of the subsequent year.
3.2 Payment Terms. Payment for the Service is due annually on a Paid Subscription basis. GCS reserves the right to change or update subscription fees. Licensee will be notified via e-mail of changes to pricing.
3.3 Renewal; Cancellation. Unless the Licensee cancels the Paid Subscription, payment will automatically renew on an annual basis on January 1st of the subsequent year. The cancellation will take effect the day after the last day of the current subscription period, and the Licensee will be downgraded to the Free Service. GCS does not provide refunds or credits for any partial subscription periods. Either party may terminate/cancel the Agreement for any reason.
4.0 Warranty Disclaimer.
4.1 Warranty Disclaimer. YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULL EXTENT PERMISSIBLE BY LAW, GCS DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS OF ANY KIND. THESE INCLUDE, BUT ARE NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. GCS DOES NOT WARRANT THAT THE SERVICES, HOSTING SERVERS, OR ELECTRONIC COMMUNICATIONS SENT FROM GCS WILL BE A) TIMELY, B) FREE OF ERRORS OR INTERRUPTIONS, C) FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, D) THAT DEFECTS OR ERRORS WILL BE CORRECTED, AND/OR E) THAT ALL INFORMATION PROVIDED BY THE SERVICE IS ACCURATE, ADEQUATE, VALID, RELIABLE, AND/OR COMPLETE. TO THE FULL EXTENT PERMISSIBLE BY LAW, GCS WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SERVICES, OR FROM ANY INFORMATION, CONTENT, MATERIALS, SOFTWARE, PRODUCTS, MADE AVAILABLE TO YOU THROUGH GCS. THIS INCLUDES, BUT IS NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES.
5.1 Definition. “Confidential Information” means information about Licensee’s business, products, services or activities that is proprietary and confidential, which shall include, without limitation, all business, financial, technical, marketing and other information marked or designated by Licensor as “confidential” or “proprietary;” together with all information which, by the nature of the
circumstances surrounding the disclosure, ought in good faith be treated as confidential.
5.2 Obligations. Licensor agrees that it will hold in strict confidence and not disclose the Confidential Information to any third party and that it will use the Confidential Information for no purpose other than as reasonably contemplated by this Agreement. Licensor shall only permit access to the Confidential Information to those of its employees, contractors or agents having a need to know for the operation or maintenance of the Service. Licensor shall maintain the confidentiality and prevent accidental or other loss or disclosure of any Confidential Information with at least the same degree of care as used to protect its own confidential information (but in no event with less than reasonable care). The Licensor will only use Licensee information for marketing or sales purposes with the permission of the Licensee, with the exclusion of User-Generated Content, delineated in Section 5.3.
5.3 User-Generated Content. The Licensee may post, upload, or otherwise contribute content to the Service (which may include, for example, pictures, text, messages, information, descriptions, and/or other types of content) (“User-Generated Content”). For the avoidance of doubt, User-Generated Content includes any such content posted to any part of the Service. GCS may, but has no obligation to, monitor, review, or edit User Content. In all cases, GCS reserves the right to remove or disable access to any User-Generated Content for any or no reason, including User-Generated Content that, in GCS’s sole discretion, violates the Agreements. GCS may take these actions without prior notification to you or any third party. Removal or disabling of access to User-Generated Content shall be at GCS’s sole discretion, and we do not promise to remove or disable access to any specific User-Generated Content. The Licensee is solely responsible for all User-Generated Content that the Licensee posts. GCS is not responsible for User-Generated Content nor does it endorse any opinion contained in any User-Generated Content. LICENSEE AGREES THAT IF ANYONE BRINGS A CLAIM AGAINST GCS RELATED TO USER-GENERATED CONTENT POSTED BY LICENSEE, THEN, TO THE EXTENT PERMISSIBLE UNDER LOCAL LAW, LICENSEE WILL INDEMNIFY AND HOLD GCS HARMLESS FROM AND AGAINST ALL DAMAGES, LOSSES, AND EXPENSES OF ANY KIND (INCLUDING REASONABLE ATTORNEY FEES AND COSTS) ARISING OUT OF SUCH A CLAIM. Licensee promises that, with respect to any User-Generated Content the Licensee posts on Whacking Fatties:
- Licensee owns or has the right to post such User-Generated Content,
- such User-Generated Content, or its use by GCS as contemplated by the Agreements, does not violate the Agreements or any property, publicity, personality, or other rights of others or imply any affiliation with or endorsement of the Licensee or the Licensee’s User-Generated Content by GCS or any entity or individual without express written consent from GCS or such individual or entity.
6.0 Limitation of Liability.
6.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR DEATH OR PERSONAL INJURY, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS BE LIABLE TO LICENSEE, OR ANY OTHER PERSON OR ENTITY, FOR ANY INDIRECT, INCIDENTAL, COVER, SPECIAL, STATUTORY, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF PROFITS OR DATA WHATSOEVER, ARISING FROM OR RELATED TO THIS AGREEMENT OR LICENSEE’S USE OR RELIANCE UPON THE SERVICE OR ANY PROFESSIONAL SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS BE LIABLE TO LICENSEE OR ANY WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS OF THE AMOUNTS PAID AND PAYABLE TO LICENSOR UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH CLAIM. FOR THE AVOIDANCE OF DOUBT, LICENSOR AND ITS SUPPLIERS SHALL HAVE NO LIABILITY TO LICENSEE DURING THE TERM OF ANY TRIAL. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO LICENSEE.
7.0 General Provisions.
7.1 Waiver and Remedies. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. The remedies under this Agreement shall be cumulative and not alternative and the election of one remedy for a breach shall not preclude pursuit of other remedies unless as expressly provided in this Agreement.
7.2 Governing Law. This Agreement shall be governed in all respects by the substantive laws of the State of Montana, United States of America, without reference to any conflicts of law principles that would require the application of the laws of any other jurisdiction. Any action or proceeding arising from or relating to this Agreement shall be subject to the exclusive jurisdiction of the state or federal courts having jurisdiction over Missoula, Montana, and the parties agree to submit to the personal and exclusive jurisdiction and venue of these courts. Notwithstanding the fore going, Licensor may bring an action to protect or enforce its intellectual property rights in any applicable jurisdiction.
7.3 No Export. Licensee will not export or re-export from anywhere any part of the Service, or any component or direct product thereof, except in full compliance with and with all applicable export laws and regulations, including without limitation, those of the U.S. Department of Commerce. Licensee warrants that it is not on the United States’ prohibited party list and is not located in or a national resident of any country on the United States’ prohibited country list.
7.4 Relationship Neither party is, nor represents itself to be, an agent, employee, partner or joint venturer of the other, nor will either party transact any business on the other’s behalf, nor in any form make promises, representations or warranties that incur any liability for or on behalf of the other party.
7.5 Feedback. Licensee agrees that Licensor may, in its sole discretion, use any feedback, suggestions, and ideas about the Service or any of its components, in any manner, including in future modifications of the Service and components thereof.
7.6 Severability If any covenant set forth in this Agreement is determined by any court to be unenforceable by reason of its extending for too great a period of time or by reason of it being too extensive in any other respect, such covenant shall be interpreted to extend only for the longest period of time and to otherwise have the broadest application as shall be enforceable. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, which shall continue in full force and effect.
7.7 Compliance with Laws. Licensee shall comply with all laws and regulations applicable to this Agreement or the transactions contemplated hereby.
7.8 Assignment. Licensee may not assign this Agreement without the prior written consent of Licensor.
7.9 Acceptable Use. Licensee agrees to provide accurate information to Licensor. Licensee cannot impersonate others or intentionally provide inaccurate information. Licensee cannot engage in unlawful or fraudulent activities. The User cannot do anything to interfere with or impair the intended operation of any product, software, technology, or service within Whacking Fatties. Licensor reserves the right to alter or change any usernames or similar identifiers associated with Licensee account if necessary.
8.0 Entire Agreement; Modification.
8.1 Finality; Exclusivity. This Agreement constitutes the complete final and exclusive statement of the terms of the Agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions of the parties.
8.2 Modification. This Agreement may not be modified except pursuant to a written amendment, executed by an authorized representative of each party.